DOL

The U.S. Department of Labor, Office of the Administrative Law Judges (OALJ), has determined that in certain circumstances, an employer can deduct H-1B visa fees from an employee’s final paycheck.

In this case, Matter of Woodmen of the World Life Insurance Society, October 26, 2016, the OALJ determined that Woodmen Life did not violate any DOL regulation by deducting $5800 from the employee’s final payment for reimbursement of H-1B attorney and filing fees pursuant to an agreement which was entered into voluntarily by the employee.

Although the DOL found that §655.731(c)(9), which speaks to “authorized deductions from an employee’s required wage and specifically prohibits an employer from seeking recoupment of H-1B attorney fees and expenses from the required wage, even if the employee consents” was not applicable to this case since the deduction for the attorney’s fees came from the benefits side of the equation and not from the employee’s required wage, the DOL’s stated that the regulation is “far too broad and not supported by the plain language of the regulation.” The DOL further clarified that “an H-1B employer is prohibited from imposing its business expenses on the H-1B worker – including attorney fees and other expenses associated with the filing of an LCA and H-1B petition – only to the extent that the assessment would reduce the H-1b worker’s pay below the required wage, i.e. the higher of the prevailing wage and the actual wage.”

The Department of Labor (“DOL”) recently released a FAQ on the information that should be included in recruitment reports. Recruitment reports are required to be prepared as part of the process of preparing a labor certification to be filed. The DOL specified that a recruitment report must include: (1) the total number of U.S. applicants who applied for the position, (2) the total number of U.S. applicants hired for the position, and (3) the total number of U.S. applicants who were rejected based upon a lawful job-related reason. The lawful job-related reasons for rejecting U.S. workers should be categorized. The DOL further specified that employers should list the total number of U.S. applicants who were interviewed and a list of the names of U.S. workers who were rejected under each category. Finally, if an applicant was rejected under multiple categories, the category that he is listed under must state the multiple bases of rejection. For instance, if a candidate was rejected because he did not have the necessary education and did not have the required total years of experience, he should fall under a category titled “candidates lacking the required education and experience.” The DOL specified that this type of categorization will “enable the certifying officer to clearly establish the reason for disqualification of each U.S. worker.”

The Board of Alien Labor Certification Appeals (“BALCA”) recently reviewed timing inconsistencies that are listed in the federal regulations that govern the recruitment validity periods for labor certifications. The employer submitted a labor certification for a “Stonemason.” The Form 9089 was mailed to the Department of Labor on September 11, 2009 and received by this agency on September 14, 2009. The employer listed on the Form 9089 that it had placed a state workforce agency job order from March 17, 2009 until April 15, 2009. The Certifying Officer (“CO”) denied the application because it stated that the job order was placed more than 180 days from the date that the Form 9089 was filed. BALCA reviewed 20 C.F.R. § 656.17(e)(2), which states that “if the application is for a nonprofessional occupation, the employer must . . . place a job order and two newspaper advertisements within 6 months of filing the application. The steps must be conducted at least 30 days but no more than 180 days before the filing of the application.” BALCA noted that these statements can be contradictory. In the instant case the employer did submit its application within six months of March 17, 2009 because six months from this date is September 17, 2009. However, there are more than 180 days between March 17, 2009 and September 14, 2009. Consequently, BALCA stated that it would “decline to penalize an employer for the inconsistency [of the federal regulations].” While this case does support the idea that recruitment may occur in the six months prior to filing a labor certification, Hammond Law Group urges employer’s to file all cases within the 180 day period in which recruitment occurred to avoid the potential for denial.

The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether advertisements that constitute part of the additional recruitment steps for a labor certification case must identify the job location. In Matter of Screen Printers Resource, Inc., the employer submitted a labor certification for the position of “International Sales and Service Business Development.” The case was audited and, ultimately, denied because the Certifying Officer (“CO”) determined that the employer’s website posting did not list the job location. The CO argued that U.S. workers may be unwilling to apply for a position that did not list a job location. BALCA reviewed Matter of Symantec Corp., which found that the advertisement content requirements that are imposed on newspapers of general circulation are not applicable to the additional recruitment steps. These additional steps must only advertise the occupation involved in the petition and may be “broadly worded.” BALCA reviewed the employer’s advertisement and stated that it “described the title of the job, the responsibilities of the job, the educational, work experience, and knowledge requirements of the job, and where the applicant could email or fax a resume.” While BALCA stated that the advertisement was “not detailed, it is not misleading.” Consequently, the denial was overturned. This case further confirms that the advertisements placed as part of the additional recruitment steps that are conducted in the PERM process do not have to be as detailed as those placed in a newspaper of general circulation.

Recently, the Board of Alien Labor Certification Appeals (“BALCA”) considered whether dated screenshots and a CD with an audio recording of a radio advertisement constituted sufficient proof to establish that these additional recruitment steps occurred as part of the PERM process. In Matter of Waldorf School of Orange County, the employer submitted a labor certification case for the position of “Teacher.” The case was audited and the employer provided screenshots from its website that included the date and time to establish that it had posted the position on its website. The employer also provided a CD that included an audio copy of the posted advertisement that was placed on the radio and the broadcast contract. The Certifying Officer (“CO”) denied the case on the basis that screenshots did not constitute dated copies of the website posting as required under the law. The CO also stated that the employer failed to provide a copy of the text of the radio advertisement. BALCA reviewed the denial and reiterated that the “documentation requirement [for website postings] should be read with a degree of flexibility.” BALCA determined that screenshots are “dated copies” of the posting on the employer’s website and that an employer “need not submit a written text of a radio advertisement.” Rather, an audio recording is sufficient proof of the text of the advertisement that was carried on a radio station. Consequently, this denial was overturned. This case provides helpful information about how employers can document postings on their website and on radio stations to establish that they conducted the additional recruitment steps that are required as part of the labor certification process.

Yesterday, the Department of Labor’s Office of Foreign Labor Certification (“OFLC”) announced that it is experiencing problems with its iCERT system. While the iCERT Systems’ application and database are working correctly, the network infrastructure that supports the system is having performance issues that are causing delays in processing cases. These delays are currently impacting H-1B, H-2A, and H-2B cases. OFLC has not stated when it expects these problems to be resolved. The Hammond Law Group will keep you updated as further announcements are made on this issue.

The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether an employer failed to comply with a request by the Department of Labor (“DOL”) when it only provided evidence of emails sent to eight of seventeen applicants for a position that was sponsored through PERM. In Matter of Accent-Media Productions, Inc., the employer submitted a labor certification for the position of “Computer Programmer.” The case was selected for audit and the employer provided a chart that identified seventeen applicants for the position and eight email responses from the applicants to the sponsoring employer. The Certifying Officer (“CO”) denied the application on the basis that the employer failed to provide documentation that was requested in the audit request. BALCA determined that the CO notified the employer that it must submit evidence of its attempts to contact U.S. applicants through the audit notification. This request was deemed to be reasonable because evidence of correspondence with U.S. applicants should have been readily available to the sponsoring employer and is “important for the CO to consider in determining whether U.S. applicants were properly rejected for a job opportunity.” Since BALCA determined that this request was reasonable and found that the employer’s “failure to comply with [the] request is material enough to constitute a substantial failure,” the denial was upheld. In reviewing an audit request, it is critical that employers ensure that they are providing all of the information that is requested by the DOL.

The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether the Department of Labor (“DOL”) is entitled to a presumption that its audit notification letters are delivered to employers and their agents. In Matter of DGN Technologies, Inc., the employer submitted a labor certification case for the position of “Programmer Analyst.” The case was selected for audit and the DOL asserted that it sent an audit notification letter to the employer’s agent. No response was ever received from the employer or its agent. Consequently, the case was denied. The employer requested reconsideration on the basis that it never received the audit notification letter. The denial was upheld by the Certifying Officer (“CO”) on the basis that the audit notification letter was sent to the address listed by the employer on its Form 9089. The case was forwarded to BALCA. BALCA determined that a lengthy case history established that the CO was “not entitled to a presumption of delivery of mail sent by the National Processing Center in the absence of proof of its internal mailing procedures,” and overturned the denial. While it is critical that employers routinely check their mail for correspondence from government agencies, this case does provide support for the idea that the DOL may not automatically deny a case when the employer failed to respond to a request due to the fact that it never received the request in the mail.

The DOL has released final data for FY 2015 for the PERM program. Almost 70% of applications were filed for IT and engineering positions and almost half of all filings required an advanced degree. The approval rate for cases adjudicated was over 90%. The data and processing times suggest a backlog is forming as they have almost 60,000 cases pending and only processed 85,000 cases during the year. Audit cases are taking almost 18 mos. for review and at present, over 13% of pending cases are under audit review with another 9% under appeal. The President’s directive to look at ways to modernize the PERM program will hopefully address these and other issues.

The DOL recently released FY2015 3rd Quarter data from its PERM program and the number of denials increased by over 100% when compared to 2nd Quarter. The stats revealed that denials have risen to over 11% of all applications and 22% of applications are currently under audit.